In Depth

A majority of nine 7th Circuit Court of Appeals judges narrowly denied rehearing en banc for an Indiana man whose sentence
was erroneously calculated. A dissenting judge called the case a “miscarriage of justice.”

The petition for a rehearing en banc in Bernard Hawkins v. United States of America, 11-1245, divided circuit judges 5-4. Chief Judge
Frank Easterbrook and Circuit Judges Michael Kanne, Richard Posner, Diane Sykes and John Tinder denied rehearing, while Judges
David Hamilton, Ilana Rovner, Ann Claire Williams and Diane Wood dissented. Judge Joel Flaum took no part in the case, Bernard
Hawkins v. United States of America, 11-1245.

Earlier this year, Hawkins
was denied resentencing in a post-conviction relief proceeding on a conviction enhanced as a career offender, even though
that distinction didn’t apply to him. At the time of his sentencing, he was considered a career offender because he
had two “walkaway” escape convictions. He was sentenced to 151 months by Judge James Moody of the U.S. District
Court, Northern District of Indiana, the bottom of the guideline range. If he wasn’t considered a career offender, the
guideline range for the assault would have been anywhere from 15 to 30 months.

Hawkins sought a rehearing en banc after the U.S. Supreme Court decision in Peugh v. United States, 133 S.Ct. 2707
(2013). Justices ruled 5-4 that the ex post facto clause prevents courts from sentencing a defendant based on guidelines promulgated
after the commission of a crime if the newer guidelines would result in a sentencing range higher than those in place when
a crime was committed.

“The issue in this case differs from that in Peugh in several respects,” Posner wrote for the
majority. “One is that Peugh involved constitutional error — a violation of the ex post facto clause.
Our case involves no claim of constitutional error — no claim for example that Hawkins’s sentence exceeded the
statutory maximum … There is just a claim that the sentencing judge miscalculated the advisory guidelines range and
might have given a lower sentence had he not miscalculated it.

“Our panel opinion does not deny that the district judge had committed an error that would be corrigible on direct
review. But we found the social interest in a belated correction of the error outweighed by the social interest in the finality
of judicial decisions, including sentences,” Posner wrote.

“The panel dissent evinced no recognition of the importance of finality to an effective judicial system, or of the
difficulty of balancing “fairness” (meaning what exactly?) against finality. … Finality is an institutional
value and it is tempting to subordinate such a value to the equities of the individual case. But there are dangers, especially
if so vague a term as ‘fairness’ is to be the touchstone.”

But Rovner, in dissent, said the case was less about fairness than about the court saving face.

“Bernard Hawkins has been sitting in a Federal Correctional Institution, where he is scheduled to remain for approximately
twelve-and-a-half years. It is uncontroverted that the district court erred when it calculated his sentence using the career
offender enhancement, and had the court not erred, his calculated sentencing range would have been approximately ten times
less — somewhere in the range of 15-21 months. Yet despite the known and conceded error, we are told that for the sake
of principles of finality, Hawkins must remain in prison for the entire 151-month sentence,” Rovner wrote.

“In light of (Peugh), and for the reasons articulated in the dissent to the panel opinion, I believe it is
our duty to reconsider Mr. Hawkins’ case.

"The district court erred in finding that Hawkins was a career criminal. Such an error constitutes a miscarriage of
justice that can be remedied via petition for relief under § 2255, and, regardless of their advisory nature, the Sentencing
Guidelines are influential enough that errors in their calculation cause harm. The Supreme Court’s reasoning in Peugh
— which is consistent with the tenets of fairness that are the quintessence of our system of justice — calls for
us to rehear this case,” Rovner wrote.

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